United States District Court, N.D. California
HENRY C. HAYES, aka HENRY M. MITCHELL, JR., Plaintiff,
RALPH DIAZ, et al., Defendants.
ORDER TO SHOW CAUSE WHY PAUPER STATUS IS NOT
William H. Orrick, United States District Judge.
Henry C. Hayes, aka Henry M. Mitchell, Jr., a state prisoner
and frequent litigant in federal court, has filed this
federal civil rights action under 42 U.S.C. § 1983 along
with a motion to proceed in forma pauperis (IFP)
under 28 U.S.C. § 1915. Hayes is ordered to
show cause on or before October 14, 2019 why 28 U.S.C. §
1915(g) does not bar pauper status in this
prisoner may not bring a civil action or appeal a civil
judgment under 28 U.S.C. § 1915 “if the prisoner
has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
the law of this circuit, plaintiff must be afforded an
opportunity to persuade the Court that section 1915(g) does
not bar pauper status for him. See Andrews v. King,
398 F.3d 1113, 1120 (9th Cir. 2005). Andrews
requires that the prisoner be given notice of the potential
applicability of section 1915(g), by either the district
court or the defendants, but also requires the prisoner to
bear the ultimate burden of persuasion that section 1915(g)
does not bar pauper status for him. Id. Andrews
implicitly allows the Court to raise sua sponte the
section 1915(g) problem, but requires the Court to notify the
prisoner of the earlier dismissals it considers to support a
section 1915(g) dismissal and allow the prisoner an
opportunity to be heard on the matter before dismissing the
action. Id. A dismissal under section 1915(g) means
that a prisoner cannot proceed with his action as a pauper
under section 1915(g), but he still may pursue his claims if
he pays the full filing fee at the outset of the action.
Hayes (aka Mitchell) has had at least three prior prisoner
actions or appeals dismissed by a federal court on the
grounds that they are frivolous, malicious, or that they
failed to state a claim upon which relief may be granted:
(1) Hayes v. City of Los Angeles, No.
2:03-cv-07197-UA-RZ (C.D. Cal. Dec. 17, 2003) (suit dismissed
for failure to state a claim and because the allegations were
“legally and/or factually patently frivolous”);
(2) Hayes v. Tenet Healthcare Corporation, No.
2:07-cv-02455-CAS-RZ (C.D. Cal. Aug. 18, 2008) (suit
dismissed with prejudice for failure to state a claim for
(3) Mitchell v. City of Los Angeles, No.
2:08-cv-01831-UA-RZ (C.D. Cal. Apr. 8, 2008) (dismissing what
was “at least Plaintiff's third attempt to
litigate” the same complaint for failure to state a
claim and because the allegations were “legally and/or
factually patently frivolous”);
(4) Mitchell v. Gutstadt, No. 2:13-cv-08089-GAF-RZ
(C.D. Cal. Nov. 8, 2013) (suit dismissed with prejudice
because all claims were barred by Heck v. Humphrey,
512 U.S. 477 (1996));
(5) Hayes v. Brown, 2:18-cv-08562-SVW-SK (CD. Cal.
Oct. 17, 2018) (suit dismissed as frivolous, malicious and
because it failed to state a claim for relief);
(6) Hayes v. Brown, No. 18-56516 (9th Cir. Mar. 13,
2019) (appeal dismissed as frivolous);
(7) Mitchell v. City of Los Angeles,
2:06-cv-07704-GAF-RZ (CD. Cal. Jul. 18, 2007) (suit dismissed
for failure to state a claim because suit was filed outside
the statute of limitations).
light of these dismissals, and because Hayes does not appear
to be under imminent danger of serious physical injury, the
Court now orders him to show cause why IFP status should not
be denied and these actions should not be dismissed pursuant
to 28 U.S.C § 1915(g).
response to this order to show cause is due no later than
October 14, 2019. The response must clearly
be labeled “RESPONSE TO ORDER TO SHOW CAUSE.” In
the alternative to showing cause why this action should not
be dismissed, Hayes ...